USCIS Releases Predetermined Indicators of Potential Fraud in H-1B Petitions

New documents have been released recently in the prolonged lawsuit by the American Immigration Council’s Legal Action Center, on behalf of the American Immigration Lawyers Association (“AILA”), regarding USCIS’ procedures and predetermined indicators of potential fraud in the H-1B process. (For a detailed review of the lawsuit and associated documents see).

Legal History

In 2005, USCIS conducted an internal audit to identify common factors shared by H-1B petitions found being fraudulent or willfully misrepresenting information. The long drawn-out lawsuit is the result of USCIS’ limited response to the original FOIA request to clarify what exact factors USCIS considers to be potential alerts of a fraudulent H-1B petition. This information could assist practitioners in proactively addressing these predetermined factors that a legitimate H-1B petition may nevertheless possess. The benefit would, hopefully, lessen the likelihood of a Request for Evidence (“RFE”), and avoid delays in H-1B processing.

USCIS Internal Procedures for Identifying Fraud Show Bias Toward Small Businesses

The documents released in the lawsuit reveal rather surprising USCIS Benefit Fraud Assessment standards that seem to target small businesses in particular. Based on a sampling of only 246 cases, USCIS determined several shared factors for fraudulent H-1B petitions that willfully misrepresented information. USCIS then uses these factors as predetermined flags for fraud, generally requiring an RFE, regardless of the individual case specifics. Some of these factors are:

• The petitioning business is less than 10 years old;
• The petitioning business has 25 employees or less and thus could not support the work load and/or pay of a full-time H-1B employee. Some of these flagged positions could be for accountant, market research analyst, budget analyst, business management analyst, financial analysts/personal financial advisers, and manager;
• The petitioning business has less than $10 million in annual income;
• Job location not listed on petition or doesn’t match the location listed on the LCA;
• History of employer filing multiple H-1B petitions, but low number of total employees;
• No signed corporate contract if employee works at end-user-client site;
• Incomplete or inconsistent information provided or vague and ambiguous answers;
• No website or working website for IT consulting company;
• The preparer and signatory address are the same, while the worksite is different;
• Photos of the building/location do not match those available online;
• Job location or office address not zoned for business;
• The LCA code general description does not match those of the job duties;
• Previous cases abandoned or withdrawn in response to an RFE;
• Questionable education credentials or credentials evaluation performed outside the U.S.; and
• The worker’s skill, age, salary, and/or education do not match position requirements.

Conclusion

Obviously many legitimate petitioner businesses may exhibit some of USCIS’ predetermined fraud alert factors, in particular small businesses. This should not dissuade a petitioner businesses from filing legitimate H-1B petitions. However, they should be prepared for additional scrutiny by USCIS and a potential RFE requiring a substantial burden of document and information production. In addition, we encourage USCIS to continue ardent fraud detection but to find a balance in the level of material requested to overcome such concerns, in particular for small businesses already limited in their resources.

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